论作为功能性概念的量刑责任

On the Liability of Sentencing as Functional Concept

理论通说一般借助犯罪论中责任的概念和范畴来理解量刑责任,但无论是理解责任的基础,还是判断责任的依据,量刑领域内的责任并未由此获得一个确定性的内涵。事实上,受刑罚目的的影响,量刑领域内的责任是从可比较性和量上,对犯罪论中的不法和有责进行了功能性调整和差异化处理,因此量刑责任是一个具有更广泛内涵的功能性概念。这主要体现在:从可比较性和量上,量刑责任对各种情节进行了严重程度的阶层性判断,从而使国家动用轻重不同的刑罚成为可能;另一方面,量刑责任融合了不同的刑罚预防目的,从而满足了责任刑罚中对预防必要性的考虑。

In the field of sentencing the liability is generally understood with the basic concept and cat- egories of liability in the criminal theory, but whether its understanding basis or its estimation basis can- not provide the deterministic conception for the liability in field of sentencing. In fact, with the influence of purpose of penalty, the sentencing liability adjusts functionally and treats differently the basic catego- ries of liability in the criminal theory from the comparability and quantity. Therefore, the sentencing lia- bility has more broadly connotation of concept and functionality. It can be mainly proved： from the com- parability and quantity, sentencing liability is responsible for the strata determine ofvarieties of circum- stances, so that the countries can possibly take action with different severity of penalties; on the other hand, it merges with preventive purposes, so that it meets the demands for consideration of prevention in the liability.